This matter was subject to a bifurcated trial on the issue of compensability of injuries suffered by the petitioner when he tripped and fell on the sidewalk abutting the building where he worked. The pivotal question to be addressed in this matter is whether the respondent had control of the property on which the accident occurred. See, N.J.S.A. 34:15-36 and Zahner v. Pathmark Stores, Inc., 321 N.J. Super 471, 478; (App. Div. 1999).

On October 1, 2009 the petitioner was employed as a security guard by the respondent, Camden County Board of Social Services. Petitioner’s place of employment was at the Aletha Wright County Administration Building located at600 Market Street, Camden, New Jersey. Although other county agencies and offices occupy the administration building, the respondent is by far its largest tenant. The building itself is large as well, occupying an entire city block between 6th Street to the east, Broadway to west, Federal Street to the south and Market Street to the north. The building has two employee entrances. One is on 6th Street. The other is on Broadway.

The petitioner’s testimony revealed that on October 1, 2009, he was to report to work by 7:00 a.m. He testified that this was to be his first day back to work after a 30 day leave of absence. Petitioner testified that he drove to work that morning and parked his car in a public parking lot. No proof was presented to establish that the lot was “designated” or “assigned” by his employer. To the contrary, petitioner testified that he had the option of parking in several different public parking lots in the vicinity.

After parking his car, and while walking from his car towards the 6th Street employee entrance, the petitioner tripped, fell and suffered injuries. He testified and presented photographs that established that the fall occurred on the sidewalk abutting the 6th & Federal Street corner of the administration building. By petitioner’s own admission, he fell at approximately 6:50 a.m. which was prior to the start of his shift, prior to him entering the building and prior to him being assigned his security post for the day.

In support of his claim that respondent “controlled” the sidewalk, petitioner testified as did former security guard, Corwin Candelario. Petitioner and Mr. Candelario testified that the clients of the respondent would often line up at the door on the 6th Street side of the building prior to the building opening to the public at 7:30 a.m. Petitioner and Mr. Candelario testified that as guards they would be assigned to “walk the line” of clients to control the people in it. Petitioner testified this “walking of the line” was performed on an “as-needed basis.” Petitioner introduced photographs depicting a line of people that stretched the entire length of the administration building to illustrate this contention.

Further testimony revealed, however, that the extremely long line depicted in petitioner’s photographs was in response to an extreme and isolated incident. That incident was Hurricane Irene. As a result of that hurricane, which struck in late August 2011, the respondent offered disaster relief assistance to the public. The photographs submitted by the petitioner clearly established that the public responded to that offer. In fact, the testimony revealed that the sheer number of people who appeared to file claims resulted in lines that line extended out the door of the building and along the entire 6th Street sidewalk for over six days. All of the witnesses testified that they had never, previously or subsequently, observed a line like the one depicted in petitioner’s photos. In fact, Mr. Candelario, testified that normally there is never a line outside of the building during the normal business hours. While petitioner acknowledged that his photographs depicted lines due to an isolated event, he maintained that smaller lines were a common occurrence outside of the doors of the building.

Respondent presented affirmative evidence to dispute petitioner’s claim regarding “crowd control” and/or “line control” duties. The Assistant Administrator for the Board of Social Services, Theresa Keating and the Board’s Chief of Security, Paul Montes, testified that they well remembered the “unbelievable” crowd that occurred after Hurricane Irene. They also testified that similar lines have never occurred either before or after that event. In fact, Chief Montes testified that during his tenure he has never assigned any of his security guards to the outside crowd control “with the exception of disaster relief during Irene.” Additionally, Asst. Administrator Keating presented photographs that she took, on various dates and at various times, on behalf of the respondent. None of the photographs reveal any lines outside of the building during normal business hours although one of the photographs, dated March 1, 2013, did show a line of approximately 20 people waiting for the building to open prior to 7:30 a.m. Chief Montes testified that such lines occasionally form at that time because a guard is posted at the door until 7:30 a.m. to prevent non-employee entrance. He testified, however, that the sidewalk is a public area and that “the outside of the building is open to everyone.”

The petitioner and Mr. Candelario also testified that part of their daily duties involved patrolling the sidewalk surrounding the administration building. On this topic the respondent again offered contrary evidence. Chief Montes testified clearly and unequivocally that, “The security at the Board of Social Services is not assigned to patrol the outside of the building. He testified, “If they happen to be out there and see something, they can report it, but at [the time of petitioner’s injury] they were not assigned to go outside of the building.” While the chief did acknowledge that security officers sometimes traversed the sidewalk area in question, he was adamant that the security guards employed by the respondent were not assigned to patrol the sidewalks “because that’s not our jurisdiction.” He testified that if there was a disturbance outside his guards would “notify the policeman that’s on site with us.” He also testified that it was rare for the security guards to respond to any outside disturbances. He defined rarely as “once every six months maybe.” Chief Montes also testified that daily patrol or security enforcement issues for the sidewalk areas were the responsibility of the guards employed by City Hall or the Camden City Police Department.[1]

The petitioner and Mr. Candelario testified regarding evacuation procedures and evacuation routes utilized by the respondent in support of petitioner’s contention regarding control of the sidewalk. The petitioner and Mr. Candelario testified that as part of their guard duties they exercised control of the employees and control of the sidewalks when those evacuations took place. They testified that the building evacuation routes required the respondent’s employees to traverse the sidewalks surrounding the building during those evacuations. Documentation was also submitted that set forth those evacuation plans and protocols. On this topic, the respondent again countered the evidence presented. Asst. Administrator Keating and Chief Montes testified that the “evacuations” referenced by petitioner and Mr. Candelario were “rare.” Ms. Keating testified that if evacuations took place “three times a year, it was a lot.”

The petitioner and Mr. Candelario also testified that they were assigned “outside posts” on the “four corners” of the building on evenings when the respondent had extended office hours. They testified that these “outside posts” were assigned in an effort to provide security to employees who were leaving the building after the evening shift ended. Petitioner and Mr. Candelario testified the guards sometimes escorted employees to their cars at the end of those evening shifts. On this topic, Chief Montes acknowledged that that the respondent did have evening hours but testified that they only occurred on Thursdays on a bi-weekly basis. He also acknowledged that at the end of those evening hours, guards would be posted at each of the corners of the building, but only for “approximately 15 minutes” until all the employees left the premises. Chief Montes also testified that the security guards would “sometimes” walk the employees out to their cars – if it was specifically requested. However, Chief Montes testified very clearly that these were not daily activities.

In addition to the testimony and evidence noted above, both sides submitted extensive briefs.

FINDINGS

N.J.S.A. 34:15-36 states,

Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer…

While, the provisions of the Workers’ Compensation Act “are to be liberally construed in favor of injured employees,” it is clear that part of the legislative intent behind the 1979 amendment to this statute was to give employers relief from the numerous exceptions which had evolved from the “going and coming rule." See, Lozano v Frank DeLuca Construction, 178 N.J. 513 (2004) andWard v. Davidowitz, 191 N.J. Super. 518, 522 (App.Div.1983).

Various reported decisions have interpreted the interplay between these concepts. Some of the reported decisions have conferred benefits on employees injured on property that was not owned or leased by an employer when it was proven that the employer exercised “control” over the site where the accident occurred. Petitioner has cited many of those cases in support of his claim. Those cases includeLivingstone v. Abraham & Straus, 216 N.J. Super. 685, 691 (App. Div. 1987); Cressey v. Campus Chefs, Div. of CVI Servs. Inc., 204 N.J. Super. 337, (App. Div. 1985); Ramos v. M & F Fashions, Inc., 154 N.J. 583 (1998);Brower v. ICT Group, 164 N.J. 367 (2000); and Kristiansen v. Morgan, 153 N.J. 298 (1998). A review of these various decisions clearly reveals that the concept of “control” is a fact sensitive issue that is not to be considered solely in the property sense of the term. See, Livingstone, supra.

After due consideration of the evidence and the arguments advanced by the parties, I find that the matter before me is readily distinguishable from the cases cited by the petitioner. Clearly this is not a Livingstone type situation where a petitioner suffered compensable injuries while traversing a direct route to or from a parking area designated by the employer. This is not a Cressey situation either. In Cressey, the employee was found to have suffered compensable injuries while using the only means of egress from the building wherein the use of that exit was due the employer being partly responsible for the hazardous condition that existed at the remaining exit. In this case, the petitioner could have parked anywhere and could have taken any pedestrian route to enter either of two employee entrances to the building. He did not take the route taken due to his “employer’s mandate.” Livingstone, at 692.

I also find that the facts of this case are distinguishable from Ramos and Brower. In those cases the employee was found to have suffered compensable injuries in a controlled common area within a building occupied by the employer. Finally, I find Kristiansen is also distinguishable in that the compensable injuries in Kristiansen occurred on outdoor property that was wholly owned by the respondent.

In this case, petitioner fell on a public sidewalk on his way to work. While, petitioner has claimed that the respondent exercised “control” of the sidewalk where he fell, I find that testimony of Chief Montes clearly established otherwise.

I find that Chief Montes provided the most consistent and credible testimony during this trial. I find that Chief Montes exhibited no apparent bias in offering his testimony. I observed that he testified about the petitioner in very complimentary terms stating that he felt that the petitioner was as a “top-notch employee” and describing him as one of “the best of the best.” I also find that Chief Montes was extremely knowledgeable as to the guards’ daily duties. I find that Chief Montes credibly discerned the “regular” events from the “infrequent” events encountered by his guards and that he explained those differences well. As a result, I find that Chief Montes provided necessary “context” to the evidence. I further find that the testimony of the petitioner and Mr. Candelario often significantly blurred the line between regular and infrequent events. I specifically find that the evidence presented by the petitioner regarding the historic lines after Hurricane Irene, the bi-weekly, 15 minute evening guard postings and the rare evacuation duties clearly does not serve to establish that the respondent “controls” the public sidewalk surrounding the building.

Chief Montes testified succinctly, “The security at the Board of Social Services is not assigned to patrol the outside of the building. If they happen to be out there and see something, they can report it, but at [the time of petitioner’s injury] they were not assigned to go outside of the building.” He also testified clearly and unequivocally that, “…the outside of the building is open to everyone.” I find that Chief Montes was very knowledgeable and very credible and that his testimony was very clear. As a result of the foregoing, I find that respondent neither patrolled nor controlled this public sidewalk. It was, and is, a public way.

N.J.S.A. 34:15-36 and the case law cited by respondent support these conclusions. See, Novis v. Rosenbluth Travel, 138 N.J. 92 (1994) andCannuscio v. Claridge Hotel and Casino, 319 N.J. Super. 342 (App. Div. 1999). In Novis, the Supreme Court held that the petitioner’s employment had not commenced when she fell on a public sidewalk leading from a public parking lot to the entrance of her employer’s building. In Novis, the Court held that petitioner’s claim for worker’s compensation benefits was not compensable. I find that the facts in Novis are clearly analogous to the facts surrounding Mr. McQuaid’s injury. I find the holding is applicable as well.

I also find Cannuscio to be particularly applicable. In Cannuscio, an employee of the Claridge Hotel and Casino was assaulted on a public sidewalk after she left work. In its decision, the Appellate Division denied benefits after conducting a “control” analysis. In that case, the Appellate Division held,

Claridge did not exercise any control over the sidewalk [where the assault took place]; the sidewalk leading to and in front of the Mid-Town Motel was not used for business purposes in the same manner the elevator was used in Ramos. Although the sidewalk generally was used by pedestrians coming to and from Claridge's Administrative Office Building, this sidewalk was also used by the general public.

Indeed, non-compensability would result even if the assault had occurred on the public sidewalk in front of the Claridge's Administrative Office Building. Once petitioner left the Claridgeproperty and entered the public way to go home, the Workers' Compensation Act did not apply. (emphasis added) Id. at 354.

Although all of the reported cases are obviously fact sensitive, Cressey contains the admonition that notions of “common sense” should be applied in considering the issue of control.Id. at 343. That being said, common sense would dictate that if the Worker’s Compensation Act did not apply to Ms. Cannuscio on “the public way to go home” it would similarly not apply to Mr. McQuaid, on “the public way to go to work.” As a result, I find that Cannuscio also supports my finding that this unfortunate event is not compensable.

Based on the foregoing, I find that petitioner has failed to sustain his burden of proof. As a result, the claim is dismissed with prejudice.

The respondent shall submit an order for dismissal conforming to this decision. Stenographic fees of $540 are payable to Jersey Shore Court Reporting by the respondent for 3 days of testimony and oral argument.

_______________________________

GEORGE H. GANGLOFF, JR., J.W.C.

[1] The patrol duties at the time of this incident were previously performed by the Camden City Police Department. That Department has since been replaced by a countywide police department.

The New Jersey Department of Labor and Workforce Development is an equal employment opportunity employer and provides equal opportunity programs.
Auxiliary aids and services are available upon request to assist individuals with disabilities.